Toward the end of the Obama administration, the Justice Department issued 25 guidance documents to prosecutors, judges and others involved in the criminal justice system to improve the administration of laws, including civil rights laws. Based on interpretations of the Constitution and legal precedent, the guidelines were put into practice in places like Ferguson, Missouri; New Orleans; Louisiana and the states of Arkansas, Tennessee and Alabama in order to redress injustices such as criminalizing people who owe civil fines.
On Dec. 22, President Trump’s attorney general Jeff Sessions, withdrew these guidance documents, charging they were creating new laws and evading regulatory process. The Lawyers Committee for Civil Rights under Law condemned Sessions’ action, with the group’s president and executive director, Kristin Clarke, writing, “We condemn Attorney General Sessions’s latest attempt to turn back the clock on civil rights progress and urge courts and administrators across the country to take affirmative steps to halt the resurgence of unconstitutional debtors’ prisons in their communities.”
Between The Lines’ Melinda Tuhus spoke with Myesha Braden, director of the Criminal Justice Project with the Lawyers Committee for Civil Rights under Law, which was founded at the request of President John F. Kennedy and his brother, then Attorney General Robert Kennedy, to provide lawyers to those advocating for civil rights and the indigent. Here, Braden, who left the Justice Department after 15 years, explains why she believes that Sessions’ Justice Department abdication of its responsibility creates a danger for all Americans.
MYESHA BRADEN: I can speak specifically to the guidance that was revoked that related to criminal justice fines and fees. There were 25, some of them relate to civil rights, some of them don’t. The fines and fees guidance sits squarely at the heart of our civil rights work, and involves the 14th Amendment and the rights that people are entitled to due process and equal protection under the 14th Amendment.
This guidance resulted following the Department of Justice’s very detailed investigation into what was happening in Ferguson, Missouri. In the Ferguson investigation, the justice department found that that municipality was using fines and fees not as a method of increasing or promoting public safety, but as a method of collecting revenue. People were being fined for things like jaywalking and expired tags and different, really relatively minor misdemeanor offenses, and they were receiving substantial fines and fees that compounded as the payments were late.
As a result of that, people were simply walking around Ferguson with warrants all over the place, and those warrants had a negative effect on those people’s experience of citizenship. It had a negative effect on their employment opportunities, sometimes housing opportunities. And based on that report, and what was found on that report, the Department of Justice issued guidance so that courts would understand under a case called Bearden v. Georgia, the Supreme Court had found that the 14th Amendment prohibited the jailing of individuals without a consideration of their ability to pay debt. That’s it. That’s all the guidance did. It set out very clearly that the courts could not send people to jail for nonpayment of fines and fees unless the courts had first found that that nonpayment was willful.
As a result of the Department of Justice’s guidance letter, courts and municipalities in many places started to make changes. Some of their own accord, some as a result of litigation that was brought, and some as a result of legislators understanding that there was a problem with fines and fees and trying to make changes within their states and city council people trying to make changes within their cities.
Department of Justice is responsible for establishing justice and promoting practices that ensure justice, fairness and equality for all Americans. So this guidance document and the similar guidance documents that were revoked where simply the justice department implementing its full mission. To watch Attorney General Sessions roll back those things suggest that the justice department is operating at less than its full capacity. That the justice department is not interested is not interested in promoting justice, particularly as it relates to civil rights issues. And that can be seen in addition to the pulling back of these guidance documents to Attorney General Sessions’ statements concerning consent degrees – how he disfavored them and intended to perhaps not use them at all. In addition to reversing positions on the use or the providing of military equipment to law enforcement, to suggesting that the justice department was not interested in looking at police misconduct and excessive use of force because of concerns about low morale for police officers and just avoiding all of the proof, all of the evidence, all of the data suggesting that those incidents of violence actually undermine the ability of law enforcement to do their job because it causes them to lose the trust of the communities that they are assigned to protect.
Now without this guidance from the Department of Justice, and without the support of the Department of Justice for making these changes, it will be much harder to get jurisdictions to make changes of their own accord. And perhaps only litigation will be able to force that change. The power of a DOJ statement on the legality of a practice really cannot be understated.
BETWEEN THE LINES: Myesha Braden, is there anything that can done to reverse this?
MYESHA BRADENT: No, because it was a guidance document. The attorney general has the perogative to issue or not issue, to pull back or not. I wish they were being much more thoughtful, rather than simply what appears to be rolling back everything that Attorney General Eric Holder and President Obama did simply because they did it.
Learn more about the criminal Justice Project with the Lawyers Committee for Civil Rights under Law at LawyersCommittee.org.
